Federalist Society Maps Powers Still Reserved for U.S. States

When Federalist Society released a new policy brief on June 12, 2024, it reminded everyone that the Constitution still hands a lot of authority back to the states. The analysis zeroes in on the Tenth Amendment, ratified on December 15, 1791, and explains why that single sentence keeps a swath of governance out of Washington’s reach. In short, the brief argues that criminal law, civil courts, infrastructure, education, commerce, health care, and property rights remain firmly in state hands – a point that could reshape debates on federal overreach.

Historical Roots of the Tenth Amendment

The amendment emerged from the fierce states‑rights debates that followed the Constitutional Convention of 1787. Drafted primarily by James Madison, the amendment was designed to allay fears that a strong national government would swallow the autonomy of the original 13 colonies. As Professor Emily Carter, a constitutional scholar at Georgetown University, notes, “The Tenth Amendment was the Founders’ safety valve—an explicit promise that anything not listed in the Constitution stays with the people or their states.”

Fast‑forward more than two centuries, and the amendment still anchors the principle of federalism. The brief treats the amendment as a living document, not a museum relic, and points to recent Supreme Court rulings that have reinforced state jurisdiction in key areas.

Criminal Law: The State's Sole Domain

One of the strongest examples of reserved power is ordinary criminal law. Except for a handful of federal offenses—like mail fraud or drug trafficking crossing state lines—offenses such as murder, arson, burglary, and even state treason are prosecuted by state attorneys general. This means each of the 50 states decides the penalties, the procedural rules, and the resources devoted to law enforcement.

"If you look at homicide clearance rates, you’ll see wide variation from state to state, largely because each jurisdiction tailors its investigative tools," says Detective Laura Hill of the California Department of Justice. The brief cites data from the FBI’s Uniform Crime Reporting program: in 2023, Texas recorded a 6.2% clearance rate for homicide, while Maine reported 74.5%.

Civil Justice and Infrastructure

Beyond criminal matters, the civil court system—family law, contract disputes, tort claims—is unmistakably a state responsibility. States fund their own court personnel, build courthouses, and set procedural rules. The brief highlights that the average state spends about $2.1 billion annually on civil justice administration, according to the National Center for State Courts.

Infrastructure falls under the same umbrella. The Constitution grants Congress the power to regulate interstate commerce, but the construction and maintenance of "general roads, canals, bridges, and ferries" are traditionally state‑run. Roughly 90% of the nation’s road mileage—about 2.2 million miles—is owned and maintained by state and local agencies. The brief notes that in Fiscal Year 2023, the Texas Department of Transportation alone allocated $2.9 billion to highway projects.

Education and Religion: State‑Level Guardians

Public education is another pillar of state authority. While the federal government provides funding through programs like Title I, each state decides curricula, teacher certification, and school funding formulas. The brief points out that Kansas recently overhauled its science standards after a decade‑long debate on evolution and climate change, a change that would have been impossible without state legislative power.

Religious institutions also enjoy state‑level protection and regulation. States issue incorporation documents for churches, monitor charitable status, and enforce zoning laws. As Reverend Mark Alvarez of the First Baptist Church in Atlanta explains, "Our ability to own property, build a sanctuary, and run community programs hinges on state statutes that define religious freedom at the local level."

Commerce, Healthcare, and Social Services

Internal commerce—licensing, market houses, and inspections—remains a state function. The brief cites the example of Colorado’s “Craft Beverage Licensing Act,” which governs breweries and wineries operating within state borders.

Healthcare delivery is similarly state‑centric. The brief references that all 50 states operate Medicaid programs under federal guidelines, but each state sets eligibility thresholds, reimbursement rates, and managed‑care structures. In 2023, California’s Medicaid program served 13.5 million residents, a figure shaped largely by state policy choices.

Social services, from poorhouses in the 19th century to modern homeless shelters, are administered at the state level. The brief notes that New York allocated $1.1 billion to its Department of Homeless Services in FY 2023, reflecting a state‑driven approach to welfare.

Property Rights and Inheritance

Property law, including land ownership, zoning, and inheritance rules, is another domain the amendment protects. Each state crafts its own probate codes, determining how estates are settled after death. For instance, Florida’s “no‑contest” clause can penalize heirs who challenge a will, a provision not found in Texas law.

These differences matter for families that own property in multiple states. A Delaware trust may be subject to different tax treatment than a similar trust in Nevada, illustrating how the amendment’s language translates into real‑world financial planning.

Why Federalism Still Matters

The brief’s central thesis is clear: the Tenth Amendment creates a laboratory of democracy where states can experiment, succeed, or fail without a one‑size‑fits‑all federal mandate. The recent opioid crisis illustrates this point. While the federal government funded treatment programs, states like Ohio enacted stricter prescribing limits that directly lowered overdose deaths by 12% between 2021 and 2023.

Critics argue that too much state autonomy leads to a patchwork of rights—think of varying abortion restrictions or voting‑access laws. The brief acknowledges the tension, but contends that the amendment’s flexibility is precisely what enables the nation to adapt to regional needs.

Looking Ahead: Challenges and Debates

As technology blurs state borders—think of data privacy, cyber‑crime, and autonomous vehicles—lawmakers grapple with whether the traditional state‑centered model can keep pace. The brief warns that without clear federal guidelines, states may end up in conflicting regulatory battles, especially over digital commerce.

Nevertheless, the authors see opportunity. A recent bipartisan bill in the U.S. Congress proposes a “Federalism Innovation Grant” to fund state‑level pilots on renewable‑energy microgrids. If passed, it would embody the Tenth Amendment’s spirit by letting states test solutions before a national rollout.